II. End User License Agreement
ENROLLMENT IN THE SERVICES
WITHOUT LIMITING ANY PROVISION HEREIN, GUMBO DIGITAL MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER, PORTABLE DEVICE, OR OTHER HARDWARE WILL BE COMPATIBLE WITH GUMBO DIGITAL'S APPLICATION. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE APPLICATION.
Methods of Payment and Credit Card Terms
All payments must be made by VISA, MasterCard, American Express Discover Card, or PayPal. We do not accept cash, checks or any other payment form. AS BETWEEN YOU AND GUMBO DIGITAL, YOU, AND NOT GUMBO DIGITAL, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR SERVICES BILLED TO YOUR CREDIT CARD BY A THIRD PARTY WHO HAD ACCESS TO YOUR CREDIT CARD OR CREDIT CARD NUMBER, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU. You agree to pay all fees and charges incurred in connection with your account and its password (including any applicable taxes) at the rates in effect when the charges were incurred. If GUMBO DIGITAL does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by GUMBO DIGITAL.
Unless you notify GUMBO DIGITAL of any discrepancies or unauthorized charges within sixty (60) days after they first appear on your credit card statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release GUMBO DIGITAL from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to GUMBO DIGITAL within sixty (60) days of its first appearance on an invoice or credit card statement.
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your account.
The price for service excludes all taxes unless stated otherwise. We collect taxes at the rate in effect at the time your transaction is completed. If the tax rate changes before the transaction is completed, the new tax rate in effect will apply. We cannot accept exemption certificates for purchases made online. Contact customer service if this transaction is exempt from tax.
GUMBO DIGITAL may impose an additional transaction fee based on transactions associated with Services. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction, by email notification concerning your Services and applicable fees, through the order path for downloadable tracks, or in a similar, explicit manner.
Credit Card Authorization
If you request access to the online music store, or to certain other Services for which a fee is charged based on each individual transaction (typically, the purchase of downloadable tracks or burns), GUMBO DIGITAL may seek authorization of your credit card to validate your ability to charge the fees to access the applicable Services prior to the first purchase. The authorization amount is typically $20, but may vary based on the relevant Services. It is standard for online music. This authorization is not a charge. However, this authorization may reduce your available credit by the authorization amount until your bank's next processing cycle.
Modifications to Fees or Billing Terms
GUMBO DIGITAL RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY GUMBO DIGITAL, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your account by contacting customer service. Your continued use of the Service(s) following the effective date of a change to fees or billing methods shall constitute your acceptance of such change. YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO GUMBO DIGITAL TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SERVICE(S) TO WHICH YOU HAVE SUBSCRIBED.
Termination By You
To cancel your account to any of the Services, please log in to your account, go to the Cancel Account section in My Profile and select "Cancel". Once you have terminated your account, we will stop billing your credit card until and unless you re-open an account. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge or payment. Termination of your account shall not relieve you of any obligations to pay accrued charges.
Termination By Us
You agree that GUMBO DIGITAL, in its sole discretion, with or without prior notice, may freeze or terminate your user name, password or use of the Application and/or Service(s) (or any part thereof) for any reason, including, without limitation, if GUMBO DIGITAL believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. GUMBO DIGITAL may also in its sole discretion and at any time modify or discontinue providing the Application and/or any Service, or any part thereof, with or without notice. Further, you agree that GUMBO DIGITAL shall not be liable to you or any third-party for any interference with or termination of your access to the Application and/or any Service.
You understand and agree that GUMBO DIGITAL is solely responsible for all customer service, help, billing and account issues related to your account. Neither your ISP nor any third party website through which you may have accessed any Service is responsible for customer service, help, billing and account issues related to your account. You agree not to direct any questions, requests for assistance, or inquiries about the Application or any Service to your ISP or to any third party website through which you may have accessed the Application or any Service. For assistance, please contact Customer Service email@example.com.
YOUR ACCOUNT INFORMATION
True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the user registration process (such information being the "Account Information").
Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated card by selecting "Payment Info" from the My Settings option and then modifying and submitting the appropriate fields.
Our Use of Account Information
Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password, and for any and all activities that occur under your account. If you believe someone has accessed any Service using your user name and password without your authorization, it is your responsibility to set up a new password by selecting "Password Change" from the My Settings option.
TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
GUMBO DIGITAL will make reasonable efforts to keep your account and the Service(s) operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We will make reasonable efforts to notify you at least twenty-four (24) hours in advance of any downtime that we anticipate in advance will exceed one hour. GUMBO DIGITAL also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Application and Service(s) with or without notice. Due to contractual or other limitations, from time to time, some tracks available in any particular catalog may no longer be available. GUMBO DIGITAL reserves the right to change or remove the tracks and albums available in any catalog at any time. GUMBO DIGITAL shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).
DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUMBO DIGITAL AND ITS LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. GUMBO DIGITAL MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES GUMBO DIGITAL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. GUMBO DIGITAL MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL GUMBO DIGITAL OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF GUMBO DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL WE OR ANY OF OUR LICENSORS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE APPLCIATION OR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES. GUMBO DIGITAL'S LICENSORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT, AND SHALL HAVE THE RIGHT TO ENFORCE THIS AGREEMENT AGAINST YOU.
MODIFICATION OF SUBSCRIPTION AGREEMENT
GUMBO DIGITAL may modify this Agreement at any time in its sole discretion. If we make a material change to this Agreement, a "change of terms" notice will be posted and we will use reasonable efforts to notify you by email at the email address on file for your account. If any modification is unacceptable to you, you agree that your only recourse is to terminate your account as provided herein. Your continued use of any Service following our posting of a change of terms notice, an email notice to you, or a new Agreement on the Application will constitute your binding acceptance of the change, until such time as you terminate your account.
II. End User License Agreement
2. All Content embodies the intellectual property of a third party and is protected by law;
3. MediaNet and/or Content Owners may, from time-to-time, remove Content from the MN Open Service without notice;
4. End Users agree that they will not attempt to modify any software or Content obtained through the MN Open Service for any reason whatsoever, including for the purpose of disguising or changing ownership or source of the Content;
5. End Users agree to comply with all applicable laws, including copyright law, in their use of the Content and to protect the applicable Content Owner’s rights therein;
6. Any reproduction, redistribution, transmission, sale, broadcast, public performance, rental or lending, adaptation, sub license, modification, promotion or other use of the Content, including, without limitation, any use that requires a synchronization license with respect to the underlying musical composition, without the prior written consent of the copyright owner is a violation of the law and is expressly prohibited;
7. Other than as expressly set forth herein, copying, sharing or transferring of the Content is expressly prohibited;
8. Each purchase of Content shall be deemed a final, non-refundable sale;
9. The availability and prices of Content are subject to change without notice;
10. MediaNet and the Content Owners are the intended beneficiaries of the EULA and shall have the right to enforce the EULA against an End User;
11. The MN Open Service including all Content and other information, materials and products included on or otherwise made available to you through the MN Open Service are provided “as-is” and “as available” without warranties of any kind from MediaNet Digital, Inc. or any Content Owners. To the full extent permissible by applicable law, MediaNet and all Content Owners disclaim all warranties of merchantability and fitness for a particular purpose. Neither MediaNet nor any Content Owners warrant that the MN Open Service or any Content, information, materials or products included on or otherwise made available to you through the MN Open Service are free of viruses or other harmful components;
12. Neither MediaNet nor any Content Owners will be liable for any indirect, incidental, punitive, special or consequential damages of any kind arising from the use of the MN Open Service or from Content, information, materials or products included on or otherwise made available to you through the MN Open Service, or for any damages in excess of the amount paid for the specific item of Content giving rise to the applicable claim for damages;
13. MediaNet and the Content Owners reserve the right to modify the usage rules contained in the EULA at any time;
14. Monitoring usage of the Content entails the ongoing involvement of and/or monitoring by MediaNet and/or its licensors;
15. End Users agree that their access of the MN Open Service, including accessing and/or purchasing Content is acknowledgement of their acceptance of and agreement to use the MN Open Service in accordance with the EULA and that any other use of the MN Open Service will constitute a breach of the EULA and may constitute a violation of law, including copyright infringement;
16. MediaNet and the Content Owners reserve all rights that they may have in law or equity to enforce the EULA or the use of the Content.
17. If Sound Recordings are available to Customers through the MN Open Platform, the EULA shall also contain the following additional terms:
18. Audio Downloads may be purchased individually, collectively as albums, or, in some cases, only in the form of albums;
19. All Audio Downloads sold through the MN Open Service are encoded in a high quality MP3 format;
20. Once an Audio Download is burned to a CD it may not be copied, distributed or transferred from that CD to any other media or device;
21. Streams may not be captured, saved, copied or stored by any means whatsoever, unless such functionality is made available as part of the MN Open Service;
22. Sound Recordings may not be used as a musical “ringer” in connections with phone calls;
23. All Audio Downloads of Sony Music Entertainment content are sold directly by SME Digital LLC via MediaNet as its agent.
24. If eBook Downloads are available to Customers through the MN Open Platform, the EULA shall also contain the following additional terms:
25. End Users acknowledge that use of eBook Downloads may require extra software and/or hardware, and any use of such software and/or hardware is their sole responsibility.
This policy answers the following questions:
· What information do we collect about you and how do we use it?
· What choices do you have about the collection and use of your personal information?
· Will we share your personal information with third parties?
· What security measures do we take to safeguard your personal information?
Information We Collect
Registration and Your Account Information
Personal information means information that can be used to identify and contact you. You do not need to submit personal information to access the Gumbo Digital Site or aspects of the Gumbo Digital Service, but if you do not disclose certain personal information to us, you will not be able to access important portions of the Gumbo Digital Service.
When you create an account, or access or use your account for purposes of accessing the Gumbo Digital Service, we may require you to provide us with certain personally identifiable information, such as your name, email address, date of birth and gender, as well as various transaction related information, such as billing address and credit card number or other payment information. You will also select a password for your account. Your email address and password will be used together so you can securely access and maintain your account.
· to store a user's log-in identity and password and automatically populate the log-in fields for you when you re-access the Gumbo Digital Site;
· to monitor irregular account behavior and implement fraud protection rules; and
· to generate and compile anonymous, aggregated statistics that allow us to understand how users navigate our site and to help us improve it.
We also keep track of your interaction with the Gumbo Digital Service and any other users, whether through the Gumbo Digital Site, or our mobile and desktop Service Applications. Specifically, our servers automatically record information that your browser (or our mobile and desktop Service Applications) sends whenever you interact with the Gumbo Digital Service. This information includes your Internet Protocol address (IP address), your cookie ID, your browser type and version, which aspects of the Gumbo Digital Service you use and when and how long you use them, and how you otherwise access the Gumbo Digital Service. For example:
Our servers log and can identify what songs you play or stream, how long you play or stream them, and where you play them from (i.e., from the Gumbo Digital Site, a mobile Service Application or a desktop Service Application).
Buying and downloading music
Our servers log and can identify what songs you download, where you are when you download them, and if the download is successful.
Our servers log and can identify which of the available mobile Service Applications you have installed (and on which mobile platforms), what you store on them and what songs you play.
How We Use Your Information
As a general matter, we use the information that you provide to us to process your user registration, and to provide, enhance and personalize the Gumbo Digital Service. We use the information automatically collected by our servers to monitor and analyze how users use the Gumbo Digital Service, and to maintain and improve the Gumbo Digital Site, the mobile and desktop Service Applications, and the Gumbo Digital Service.
Specifically, we use the information that you provide to us to:
· send you emails and newsletters (or otherwise communicate with you through the Gumbo Digital Service) for the purpose of keeping you updated about (i) the Gumbo Digital Service in general, (ii) the music available on or through the Gumbo Digital Service, and (iii) the features and functionality of the Gumbo Digital Service, the Gumbo Digital Site and our mobile and desktop Service Applications (including, without limitation, information about available software or Gumbo Digital Service upgrades or updates);
· send you emails and newsletters (or otherwise communicate with you through the Gumbo Digital Service) for the purpose of offering you upgrades, content and additional services for you to access or purchase;
· provide you with a more personalized experience based on your personal information;
· make available to you, and bill you for, your access to the Gumbo Digital Service (including, without limitation, verifying the authorization of your credit card or other payment method before any purchase of music);
· verify your right to access premium services;
· track your use of the Gumbo Digital Service, including without limitation, to track your access, streaming and downloads of music for the purpose of paying royalties and license fees to third party providers (such as record labels and other copyright holders and content distributors);
· communicate with you regarding your account and any customer service matters that may arise;
· respond to or confirm your requests or activity on the Gumbo Digital Service;
· ask you to participate in surveys that help us make the Gumbo Digital Service better;
· provide you with targeted advertising, promotions and special offers;
· better understand how our Gumbo Digital Service is being used;
· notify you of activity initiated by persons that you follow or that follow you (or of groups that you follow or that follow you), including, without limitation, the commencement of such relationships (i.e., to notify you that you are being followed or that a person wishes to introduce you to new content);
· notify you of issues with the Gumbo Digital Service and/or unusual account actions (i.e., password resets); and
· notify you and warn you of inappropriate conduct, and if necessary, to inform you of the suspension or termination of your account.
By accessing or using the Gumbo Digital Service, you consent to receiving these various emails from us, but have the right to unsubscribe from receiving future emails at any time (see “Opting Out of Receiving Communications from Us” below).
We will use your billing address to verify your credit card or other payment information, and we will use your credit card or other payment information to allow you to pay for any downloads you purchase.
Additionally, we may use personal information that you provide, or that we learn about you to otherwise improve your use of the Gumbo Digital Site and the Gumbo Digital Service. We will also use this information to help us quickly and efficiently respond to inquiries and requests, and otherwise enhance our Gumbo Digital Service offering for our users.
Your Choices About the Collection and Use of Your Personal Information
Opting Out of Receiving Communications from Us
If, at any point in time, you are not interested in receiving emails, mailings or other announcements from us or our affiliates, you will be able to opt-out of receiving them by clicking on the specified link in any given email communication or by modifying your personal settings. Please note that you cannot unsubscribe from certain non-marketing related correspondence from us, including messages relating to your Gumbo Digital account.
Control of Your Information
You can access and update most of your personal information through the use of the Gumbo Digital Site. To protect your privacy and security, we take reasonable steps (such as requesting a password) to verify your identity before granting you access or allowing you to make any corrections or updates. You are responsible for maintaining the secrecy of your password and account information at all times.
Sharing of Information with Third Parties
We will not sell or rent your email address or any of your personal information. However, to operate the Gumbo Digital Service, we will share your information in the following ways:
As Aggregated Data
We will share statistical and demographic information about our users and their use of the Gumbo Digital Service (including on the Gumbo Digital Site or through our mobile and desktop Service Applications) with suppliers of advertisements and potential affiliate partners. We may also disclose and otherwise use non-personally identifiable information about users. None of the above would include anything that could be used to identify you or to discover individual information about you.
With Service Providers
As Otherwise Required
We will share personal information we collect from you if we believe it is reasonably necessary to make the Gumbo Digital Service available, legally required, or otherwise permitted by you. For example:
Protection of rights
We will share personal information if we have a good faith belief that (i) access, use, preservation or disclosure of such information is reasonably necessary to satisfy any applicable law, regulation, legal process anywhere in the world, such as a court order or subpoena, or a request by law enforcement or governmental authorities, (ii) such action is appropriate to enforce the Terms of Service and Payment and Subscription Terms for the Gumbo Digital Service, including any investigation of potential violations thereof, (iii) such action is necessary to detect, prevent, or otherwise address fraud, security or technical issues associated with the Gumbo Digital Service, or (iv) such action is appropriate to protect the rights, property or safety of Gumbo Digital, its employees, users of the Gumbo Digital Service or others
If we become involved in a merger, acquisition or other transaction involving the sale of some or all of our or our affiliates’ assets or voting securities, user information, including personal information collected from you through your use of the Gumbo Digital Service, may be included in the transferred assets or securities. Should such an event occur, we will use reasonable means to notify you, either through email and/or prominent notices on the Gumbo Digital Service.
You hereby grant Gumbo Digital and its representatives the right to access your account and records as necessary to investigate any use of the Gumbo Digital Service including, but not limited to, alleged violations of applicable laws and regulations, abuse, and/or harassment.
Additional Information You Should Know About Third Parties
The personal information you provide to us is stored on servers, which are located in secured facilities with restricted access, and protected by protocols and procedures designed to ensure the security of such information, including firewalls, password encryption and other password protection features. In addition, we restrict access to personal information to our employees, independent contractors and agents who need to know this information in order to develop, operate and maintain the Gumbo Digital Service. All Gumbo Digital personnel who have access to this information are trained in the maintenance and security of such information. Any bank account information and other user sensitive information you supply us is transmitted and protected via Secure Socket Layer technology (“SSL”) and HTTPS protocol and then stored into our databases using industry standard encryption methods to be accessed only as stated above.
No server, computer or communications network or system, or data transmission over the Internet can be guaranteed to be 100% secure, however. As a result, while we strive to protect user information, we cannot ensure or warrant the security of any information you transmit to us or through the use of any of our Gumbo Digital Service and Internet and we accept no liability for any breach of security or any unintentional disclosure, loss or misuse of any such information or data or for the actions of any third parties that may obtain any such information or data. You acknowledge and agree that you provide such information and engage in such transmissions at your own risk. Once we receive a transmission from you, we will endeavor to maintain its security on our systems.
We continue to store your personal information for so long as it is necessary to provide you our Gumbo Digital Service and periodically destroy old personal information in accordance with our company policies, including when it is no longer necessary in order to offer you the same high quality service. In most cases, we will keep one archival copy of your information to allow us to comply with laws or respond to legal processes.
The Gumbo Digital Service is not intended for children under the age of 13. We do not knowingly collect or maintain any personal information or non-personally-identifiable information from anyone under the age of 13 nor is any part of our website, software or service directed to children under the age of 13. We will close any accounts used exclusively by such children and will remove and/or delete any personal information we believe was submitted by any child under the age of 13.
If you are under 16, you may only use the Gumbo Digital Service if you have obtained the consent of your parent(s) or other legal guardian. By using the Gumbo Digital Service, you warrant that you have obtained such consent.
If it’s good… it’s Gumbo Digital™